Protecting private property from eminent domain

By State Representative Jay Hottinger

COLUMBUS - Nearly two years ago, in the case of Kelo v.New London, the U.S. Supreme Court upheld the ability of government to seize private property in order to make way for development by commercial industries in the name of economic development. The case involved the town of New London, Connecticut where homeowner Susette Kelo and six other families were being forced out of their homes tin order to make room for pharmaceutical manufacturer Pfizerto construct a $270 million global research center.

Traditionally, governments have only used eminent domain authority to eliminate blighted property or to build highways, schools, or other public use facilities. The ruling expanded the meaning of public use and caught the attention of property owners across the nation who began to fear that they could be forced to relinquish their property in the name of economic development.

When the ruling was first announced, lawmakers in Ohio became concerned about the effects it might have on property owners here in our state. A moratorium on eminent for the purpose of economic development was quickly enacted, and a task force was established to study the use of eminent domain during the moratorium. The work of that task force came to fruition recently as two bills dealing with eminent domain were passed, one by the Senate and one by the House of Representatives.

Under the House version, HB 5, no longer would those considering the use of eminent domain be able to consider whether property could be put to better use, or generate more tax revenue, in determining whether the lot in question was blighted. Property will only be allowed to be taken if it is necessary for public use. Several purposes that are not a "public use" are specificallylisted. These include taking property to transfer to another individual who wishes to establish a commercial enterprise, taking land purely for economic development purposes, or simply to increase tax revenue. If a private developer can demonstrate that the area or parcel in question is indeed "blighted," then the local government or agency will still be able to initiate the eminent domain process. In these situations the government must have a comprehensive development plan documenting the public need before he proceedings begin.

Several other issues with the use of eminent domain were also included in HB 5. A common concern is hat the government or agency attempting to use eminent domain proposes a low payment for the property in question in an attempt to procure the property for less than its true value. While I support the careful use of public money, the government also has a duty to provide just compensation for property through the eminent domain process. HB 5 will require that if the final award for the property is more than 125% of the initial or revised offer, then the agency or local government will be responsible for all costs and expenses, including attorney and appraisal fees. Notificationand a public comment period would also be required in most situations involving eminent domain to give affected property owners a chance to provide written comments before the proceedings begin..

In the coming weeks, the House and Senate will work out the differences in their bills.